July 2, 2009

That Justice Ginsburg's dissent in Ricci managed to get four out of nine votes points out major flaws in both American intellectual life and in the Supreme Court.

Some of what's wrong with the Supreme Court is structural. Justices used to drop dead of heart attacks before they aged too far into mental decline. By this point, lots of people have heard about the best solution: replace lifetime tenure with single 18 year terms, with the President getting to select two justices for each election he wins.

What nobody knows, as far as I know, is how to get there from here. How do you work out which Justice gets forced into retirement first to make room for new blood? This could be very hard to work out in a bipartisan manner. (If you have any technical suggestions for how the transition should be managed, please put them in the comments.)

Now that the Democrats have complete power in Congress and the White House, however, they can just go ahead an make this reform on their own. I can't imagine they would, though.

A more subtle defect in the Supreme Court is the lack of adult supervision. We still have the obsolete system of ailing Justices such as 76-year-old Ginsburg (cancer surgery in February) and extremely elderly Justices (Stevens is a ridiculous 89) being assisted solely by clerks who are largely in their late 20s: the senile being aided by the puerile.

Consider the futility of relying on clerks for a complicated topic like testing in the Ricci case. Do you think Justice Ginsburg's clerks were told the truth about testing when they were in law school? I don't care what your LSAT score is, to understand the reality behind Ricci, you have to do a lot of self-education and you have to learn about how the world really works. And that takes time. I moved to Chicago at age 23, and from then on I heard a lot about fireman and policeman testing, but it took me until my mid-30s to develop a mature understanding of the subject that wasn't just based on idealistic assumptions about how things should work. And I'm still figuring out things about fireman testing that make me say, like Huxley reading The Origin of Species, "How stupid of me not to have thought of that."

Occasionally, we see Justices instead hiring grown-up clerks with some experience of life (Justice Thomas recently hired a clerk who had already made partner at her law firm), but the salary is only around $65,000. (Supreme Court clerks get big signing bonuses from the private law firms that hire them when their year is up, but still ...)

What we need is a modest budget (say, $3 million per year across the 9 Justices) to allow each member of the Supreme Court to hire a mature Chief of Staff to manage the clerks, with, say, a three year term.

56 comments:

Your idea for mature chiefs of staff for each Justice's team of clerks makes sense, but I don't see what the relevance is of the Justices' age and infirmities in this case. If Ginsberg were ten years younger and cancer free do you really think she would have voted differently?

It will be hard to get the Dems to sign on to any reforms since their strategy is to politicize every aspect of life. They like the current arrangement where they can appoint complete political drones such as Ginsberg to the Supreme Court. As long as such justices have a pulse the Dems have a reliable arrow in their quiver for their effort to remake society in the image of their late night fantasies.

Fixed term limits on Supreme Court Justices sounds attractive but I think it is a bad idea. It would undermine the independence of the Court. Justices would have to worry about life after the bench and may guided by more than just their reasoning in the authoring of opinions, after all many of them will be seeking employment with vault 20 law firms after their terms expire, I don’t know if any of you are familiar with who runs those firms, but I can assure you they didn’t have McCain-Palin ’08 signs on their lawns.

Term limits would also send the ideological balance of the court into a whirlwind. With Justices changing so frequently decisions could be overturned and re-affirmed in a relatively short time span. The Court would be almost as fickle as the White House and forced to use the same Machiavellian reasoning that guides politicians.

For a further discussion of the need for independence of the Court see Federalist 78 by Alexander Hamilton.

How to choose who must retire first? That's easy: Get a nine-sided die (nonagon) and assign a number to each Justice. If the Justices don't like the finality of one roll, they can try five out of seven rolls. This could work. Or take nine straws of equal length, and trim one to two-thirds length. All Justices draw straws, held by an average American, chosen at random for this most important honor.

I moved to Chicago at age 23, and from then on I heard a lot about fireman and policeman testing, but it took me until my mid-30s to develop a mature understanding of the subject that wasn't just based on idealistic assumptions about how things should work.

Yes, maturity does take about that long. Kind of a pity, I think as I look back on some of the misguided efforts of my 20s.

Do you think Justice Ginsburg's clerks were told the truth about testing when they were in law school? I don't care what your LSAT score is, to understand the reality behind Ricci, you have to do a lot of self-education and you have to learn about how the world really works. And that takes time. I moved to Chicago at age 23, and from then on I heard a lot about fireman and policeman testing, but it took me until my mid-30s to develop a mature understanding of the subject that wasn't just based on idealistic assumptions about how things should work.

To an extent, Steve. But what is the difficult concept that even Supreme Court clerks can't understand? Everyone knows what a test is, that some people pass, others don't; and everyone also knows about black underperformance in this country. No, lack of understanding of tests isn't what's going on here, it's the theory as to black underperformance that's off. The clerks or whoever is doing the deciding believe that the test is discriminatory and its administrators racist.

The American legal system needs more reform than just Supreme Court term limits. The legal system is a plague; it's killing us.

Avoiding employee litigation is almost impossible. The lawyers have set things up that way, and they feast off it. The lawyer-friendly Obama Administration will now set loose an even larger swarm of locusts.

The lawyers' responsibility for bringing about Great Depression 2.0 should not be underestimated.

As you might have guessed, "Law & Order" tackled the issue of senile judges being manipulated by their young clerks a couple of years ago. Mix a pickled old man with an attractive young female clerk, and the courts might find we had rights we didn't know we had.

Elderly judges and recent law school graduates are more than capable of reading the Constitution, statutes, regulations, and cases and applying legal rules found therein to specific cases.

The problem is that our current Supreme Court instead acts as a Councile of Ayatollahs, deciding all sorts of social questions in a manner far removed from applying rules written by others. Adding a "Chief of Staff" to boss the clerks won't change that basic problem. If anything, it might make matters worse.

The CoS for clerks is not a bad idea, but we still have the problem of the aging justice who I presume will be making the pick.

My grandmother is 94 and is in great health for her age, but her mental capacity is noticeably reduced a little bit from my earlist memories of her in her late early 70's. I worry about a 89 year old justice being able to choose a CoS. Thinking about them crafting a nuanced legal decision almost offends the sensibilities.

Um.., placing term limits on Supreme Court Justices is a terrible idea.

The point of having justices on the SC is that they will be independent. The longer their term is, the more independent they are. Ideally, each new justice would be selected by the SC itself. The reason that 4 justices on the SC voted with Ginsburg was because they were appointed there by left-wing presidents who knew in advance that they were going to vote with the party (just like the 5 justices who voted the other way). The only way to truly fix the SC is to make it independent of all outside interference. The other two branches of government are obvious sources pf interference. However, we also need to separate the SC from the intellectual elite for the SC to be truly independent. That is where our efforts should lie.

I think you're wrong to suggest that Ginsburg's dissent was indicative of mental decline on the court (though I guess I agree that 89 year old Justices and 20-somethings aren't such a good pair). It struck me as a perfectly adequate dissent given the ideological assumptions that informed it. It was simply a matter of "PC makes you stupid", other than that the dissent was fine.

Half Sigma was confused when he suggested that Ginsburg's hypothetical refusal to throw out the test results if Blacks scored much higher than Italians is proof that her ideology is not in line with the race neutrality of the law. In reality, she would likely not throw out the results because she believed that, because Italians don't have the same history of discrimination 'disenfranchisement' as blacks, and have a history of reasonably strong performance on these sorts of exams, it is unlikely that any drop in performance is the result of the sorts of deep seated biases and structural discriminatory practices that hinder the advancement of blacks. Thus, from a race neutral perspective she would be justified in upholding the test as non-discriminatory if blacks suddenly started scoring much better than italians.

Obviously we know that if this happened it would indicate that the test had been turned into a "Chitlin Test" and thus that the results would be useless, but given Ginsburg's ideological assumptions and beliefs about American history and the 'structure of discrimination' her view is perfectly sound and impeccably 'race neutral'.

Steve, your emphasis on the age of Justices seems Rooseveltian. You raise some good points though.

How do you work out which Justice gets forced into retirement first to make room for new blood?

Keeping the substance of your plan (my own proposal being very different):Retire the oldest justice every four years until the eldest is under 70, skipping any judge who has served less than ten years.

The problem with this is that it seems to confer too much short-term power on an individual President. I gather that you would make 18 years the term for appointments to regular vacancies (those following a retirement of a sitting justice), while those replacing dead/impeached/resigned justices would only fill the remaining fraction.

Still, the sitting President would have quite a lot of power. I'm thinking, have completely different branches fill regular vs. irregular vacancies. Time regular vacancies so Congress is in session when they happen; Congress elects those justices in joint session. The President retains power to fill irregular vacancies, and the Senate retains power to block those nominations.

That would "spread the wealth" of judicial appointment power. Right now, future Supreme Court composition (i.e., the abortion issue) dominates Presidential campaigns. It would be nice if people would take other issues into account.

mature clerks won't help anymore than mature writers at the NYT or MSM.What happens happens because our elite want it to happeneach year the constitution becomes more and more irrelevant..anyone who thinks the ricci case will change things is wrong. They will just find a new way to carry out the ideas expressed in Ginsberg's dissent.

I disagree. The problem is not that the Supreme Court lacks the staff to handle complex policy decisions- the problem is that the Supreme Court is making complex policy decisions. Before the Judiciary Act was revised in 1925 and amended in 1935, the Court was a sleepy place where a nonagenarian like Oliver Wendell Holmes found little to keep his one young clerk busy. If the Justices were once more confined to the narrow technical questions that are appropriate to an appeals court, it would be so again.

I'd assume the switch to 18 year terms would simply involve the senior-most judge on the court getting replaced every 2 years until 18 years after the change when all of them were term-limited (and then you'd still be replacing the senior-most every 2 years). The change as a whole would be terribly controversial but I don't see why this wouldn't be the obvious (and relatively uncontroversial) way to manage it.

The funny thing is that most justices do retire eventually. Since 1954 only one justice (Rehnquist) has died in office, although a few have died within months of retirement. They mostly (with some exceptions like Souter) seem determined not to retire until age 80+, however.

I remember during the Reagan years, conservatives like me tried to get term limits on justices. It went nowhere. Change is probably impossible. So I might as well advance my utopian solution:

The U.S. Supreme Court is made up of the 50 state chief justices, who meet once a year in Aspen, Colorado, where they have one month to ski, drink, and decide all cases they think important. What they don't decide, or what is decided by a tie, is left to the lower courts, or (gasp!) "reserved to the States respectively, or to the people."

I wonder what Steven's IQ is now, without it being normed for age? Perhaps in the 90-100 range at best?

He was once smart, no doubt. Just for the heck of it, let's say his IQ in his prime was 135. By age 89, what would a 'typical' IQ decline look like, if it is possible to speculate what 'typical is.' How many points?

If you people were really conservatives you would understand that the best thing to do is nearly always nothing.

Hyperlongevity + cognitive impairment is going to be ending pretty soon. Either people will die from superbugs they got in the hospital or from bioweapons, or they'll stay alive and benefit from cognitive enhancement tech. Either way there won't be doddering senilities on the bench any longer. Changing the law at this point would be stupid.

All we need is a President or Congress that reads the Constitution and notices the Supreme Court isn't the final authority on the meaning of the document. Let a President or Congress simply ignore some of the stupid rulings issued by SCOTUS and they will not be so quick to just pull policy preferences out of thin air.

The good news, we already have the rules in place to keep a free country. The bad news, we have to read and follow those rules.

In the three branches of government there is absolutely no doubt that on average SC clerks are the most intelligent people in positions of power/influence. Congress doesn't come close and the White House is capricious in terms of talent and its influence. Judges are generally well-qualified but they are not picked entirely on merit (eg, Clarence Thomas rather than Richard Posner fills a conservative seat). Supreme Court clerks are uniformly brilliant and a bright spot in the dim firmament of our democracy.

Article III, section 1 of the Constitution is interpreted as giving federal judges life tenure unless properly removed for misconduct ("...shall hold their offices during good behaviour"). The Democrats therefore cannot enact the reforms proposed here, even if they wanted to -- a constitutional amendment would be required.

They could, I believe, do other things, such as dilute the power of senile justices by enlarging the size of the Court. This is because the number of Supreme Court justices is fixed by statute rather than by the text of the Constitution. FDR attempted a maneuver along these lines, to dilute the power of conservative justices, but was blocked by public opinion.

The last time a glaringly senile justice sat on the Court -- William O. Douglas, at the end of his tenure -- the other justices worked around the embarrassment by, among other things, agreeing to postpone cases in which Douglas would have cast the deciding vote.

The William Howard Taft rule: All justices must weigh 300 or more lbs. (200 lbs. for lady justices), officially weighed in public at the beginning of each court term. Justices not meeting that minimum would be permanently removed, to be replaced by someone with the appropriate juridical pulchritude.

That should shuffle them off this mortal coil at a faster rate, while letting them enjoy life a little more than they seem to.

Here's my principal suggestion: The President should not be empowered to pick Supreme Court justices. That responsibility should be passed to an independent committee selected by an elite group of businessmen, scientists, and lawyers. Therefore, we need to amend the Constitution.

Let's look at reality: everyone knows that the presidency has been dumbed down--so why should we continue to cede power to the mediocrity who knows how to run a good campaign, but lacks moral fiber and intellectual rigor? Sonia Sotomayor is an embarrassment, and Obama should be impeached for his miserable choice.

The Supreme Court should not be sullied by quotas and diversity pimps.

In 1977, Australians voted to implement a mandatory retirement age of 70 for justices on our highest appellate court, the High Court of Australia. This remains the third most popular of the 44referendum proposals since the commonwealth was created in 1901.In 2004 Leigh estimated the average age of Australian High Court justices to be 65. Arguments in support of the proposal included judges inability to time their retirement so that the political party they favoured was in power and therefor able to appoint their successor and the idea that mandatory retirement would keep the High Court in touch with the changing populace.

Do you think Botoxed-to-the-hilt Hollywood actresses look as good as twenty year olds? You can never really turn back the clock.

I am not convinced by your analogy of smarts to beauty, sorry.

The likelihood that we will be able to do much more than turn back the clock on cognitive functioning is quite high. And it is also likely that if we can't manage to do this, we also won't be able to save people from the new diseases being generated by mass institutionalization and population movements, let alone bioterrorism. In the future is is both probable that everyone gets a lot smarter and old people with weakened immune systems and more frequent hospitalizations die earlier. The first probability is likely to mitigate the second of course.

How about replacing the current Supreme Court with an American Idol type TV show? Each of the 9 justices delivers his opinion on some legal matter brought to the attention of the court, then everybody in the US gets to vote by telephone. Scalia can play the role of Simon Cowell. And every seven years the 9 SCOTUS justices have to play a round of Survivor with nine circuit court judges.

Sorry Steve but your idea wont work and is not wanted by the powers that be. The US governemnt has been so corrupted that no clever new laws can fix it. This system will collapse in civil war with a breakdown in law and order as dying civilizations always do.

You made the point in an earlier post that the the Left doesn't really believe in their rhetoric of equal justice for all. That's exactly the point. The Left sees the Law and the Courts as weapons to be used against their political opponents. That's the rationale behind the "living breathing constitution" concept: the law means whatever they say it means notwithstanding the intentions of the 18th century dead white males who wrote those laws.

I like the idea of limiting the terms of supreme court justices. I have a solution that would also aid the fairness of how they are appointed by determining how the politicians that appoint them and certify them are chosen. Outlaw political parties. If no one could brand themselves as Demo's or Republican's, etc., it would force the voting population to look at where they stand on the issues. You could make it like a playoff. Each state could have a lottery to determine say eight finalists that would debate. A state primary election to determine one winner to go to say 6 regional runoffs, with the various regions determined by pop. size. The winner's of the regionals would then go to a national debate scenerio where the two largest vote recipients would be President and Vice President with NEVER any party affiliations associated at any time with these contestants. Contestants in each state would have to qualify by written exam proving themselves to be proficient students of the Constitution of the United States.

Skt: Selection bias...Physical and mental disability go hand in hand considering that aging is a global process...You are treating physically unwell people they are likely to be mentally unwell as well. Performance IQ declines with age quite drastically, however, verbal IQ, which lawyers rely on, barring illness, shows only a very small decline starting in the early 70's.

Some people just age well. I know a 86 YO who drives transport vans for a hospital. Getting 250lb+ wheelchair bound patients in position in a small cramped bus and tying down the chairs is something many on this board could not do...Including me(Bad Knees). And this guy was my age when my father was born.

"Anonymous" wrote, "Judges are generally well-qualified but they are not picked entirely on merit (eg, Clarence Thomas rather than Richard Posner fills a conservative seat)."

Maybe nobody is smarter than Posner. But he doesn't "merit" a position on the court more than Thomas (who has his own problems, such as too much backing of executive power). Posner just came out for outlawing Internet linking without permission. Where would iSteve be then?

In his attempt to save dying newspapers, Posner writes on his blog: "Expanding copyright law to bar online access to copyrighted materials without the copyright holder's consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder's consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion."

While it's still legal, I'll provide the link to his blog post: http://www.becker-posner-blog.com/archives/2009/06/the_future_of_n.html

The problem of old f'ers on both the Supreme Court and in both Houses of Congress has a fix. Create a new House (the Senate Emeritus, say) to make a tricameral legislature-with this new house having some negligible power. The seniorest Senators, Reps, and SC Justices are eligible for election, with their names automatically nominated to the federal ballot in all states or districts except in the case of reps and Senators their home district or state. When elected, they are in for life, may quit with full retirement, but may never hold any other elected federal office. I bet, for instance, Byrd would win a landslide in every state BUT WV, where he's not eligible, and we'd be rid of the old bastard. He'd have a lifetime paycheck but no authority. ALTERNATIVELY, require Justices to be over 55 and under 75 at time of appointment and institute a rule they no longer must retire with no other work-like Teamsters once required- at, say, 80-but with full pay for life.

If we develop some way to slow down or stop aging for most people, then lifetime appointments (and life sentences in prison, and lifetime tenure, and....) will need rethinking.

That last anonymous responding to SKT is making the standard anti-bell-curve error. On average, 80 year olds aren't as mentally sharp as 60 year olds. But since we're talking about averages, there's no contradiction between that and occasional 80 year olds who are still extremely sharp.

The court is not supposed to be independent of the people. A little less independence would be a very good thng.

Let me clarify, when I used the term “independence” I did not mean independence from the people. The Court can and should consider public sentiment when deliberating on a case. As Hamilton states “the Constitution should be preferred to the statute, the intentions of the people to the intentions of their agents.”

What I was referring to was the Court’s independence from Washington politics. Immunizing Justices from the Washington cocktail circuits and perfidious politicians is a very good thing.

The size of the court is not fixed in the Constitution. Grandfather in the sitting justices as justices for life who will not be replaced. Select 1 new justice every 2 years for an 18-year term. If a fixed term justice does not complete his term, appoint a replacement whose term would be limited to the remaining term of the justice he is replacing. If the grandfathered-in life justices die out too quickly, so that the number of sitting justices falls below 9, appoint a replacement to serve until the next fixed term justice is selected.

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